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Can Facebook Get You Fired? Complaining About Work On Social Media is Protected Speech

Should you be allowed to say what you want about your company online? The government seems to think so.

In a series of rulings over the past few months, governmental organizations have taken the stance that employees cannot be penalized for making fair comments about their employer online. “Many view social media as the new water cooler,” says Mark G. Pearce, chairman of the National Labor Relations Board.

Pearce also notes that federal law has consistently protected the right of employees to discuss their jobs and all related matters and, by including social media in that net of safety, “All we’re doing is applying traditional rules to a new technology.”

Currently, there aren’t definite guidelines regarding what is and is not protected but the NLRB, whose rulings apply to virtually everyone in the private sector, generally contends state that it is illegal to implement overarching social media rules if those policies will deter workers from speaking to one another about how to improve wages, get more benefits or superior working conditions.

Specifically, the board contends that you can’t fire someone for “concerted activity” that seeks “mutual aid.” Banning discussion that is critical of the employer discourages workers from lobbying against unfair work conditions and employers can’t do that.

So, when five employees were fired for posting expletive-filled comments about how they had too much work, the board ruled they were fired unjustly.

However, the agency does allow employers to go after lone workers that take to the Internet. This was the case when a reporter, bored on a slow news day, tweeted comments urging Tucson to commit homicides so he would have some work. When he was fired, the board ruled it fair because the comments were offensive, not about improving working conditions.

The board took a similar stance when a bartender, upset over not getting a raise in five years, tweeted that all his customers were “rednecks” that he hoped would choke on their glasses as they drove home drunk. Again, these comments were ruled offensive, not a protest against poor conditions, so the bartender’s firing was declared legit.

The NLRB has targeted major companies such as General Motors, Target, and Costco to rewrite their social media policies, even submitting a report about active policies that are illegal. The board is applying laws from the industrial era that were originally designed to protect worker rights to unionize. However, these new interpretations essentially apply to any aspect of the private sector.

However, some organizations consider this an unfair way for the board to increase its power. Randel K. Jogn, senior vice president for labor policy at the United States Chamber of Commerce, argues, “The board is using new legal theories to expand its power in the workplace,” and adds, “It’s causing concern and confusion.”

The NLRB is amongst the numerous governmental organizations that have enacted laws to provide protection for workers and their social media usage. California and Illinois, for example, are amongst the six states that ban employers from asking for employee passwords to social websites.

Lewis L. Maltby, president of the National Workrights Institute, has said that social media rights in the workplace are a larger issue, citing a specific case where a Michigan man was fired due complaints from his co-workers about some racy fiction stories that he wrote in his spare time and published online. According to Maltby, “No one should be fired for anything they post that’s legal, off-duty and not job-related.”

Whatever the case may be, all of these organizations find themselves at the center of a larger debate. In a world where everyone from corporate CEOs to high school students are facing consequences from social media posts gone awry, a little certainty in the rules could probably benefit both employer and employee.

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